Hong Kong’s National Security Law: weaponizing the constitution, securitizing authoritarianism

Published: 15 June 2020

Jean-François Dupré discusses recent events in Hong Kong, where the central government has undertaken to impose its National Security Law (NSL). What is the likely impact on the democracy movement and Hong Kong's constitution? 

In 2019, three decades after the protests that ended with the massacre of unarmed democracy activists by troops in Beijing’s Tiananmen Square, Hong Kong entered a period of unrest unprecedented since the Handover. Originally triggered by proposals by the Hong Kong government to allow for extraditions to take place toward China, protests quickly evolved into an all-encompassing democracy movement.

Although protesters managed to block the extradition bill, they haven’t succeeded in seeing their wider demands for democracy met by the government. Quite on the contrary, authoritarian Hong Kong has since arguably evolved into a police state. Nearly 9000 people have been arrested to date.

Many have feared a military intervention by the central government. However—issues of police militarization aside—Beijing’s response to this unprecedented challenge has been legal rather than military. More specifically, the central government has recently undertaken to impose its National Security Law (NSL) to Hong Kong by annexing it to the city’s constitution—the Basic Law. In doing so, the central government seeks to bypass Hong Kong’s partially elected legislature, which has—with the assistance of Hong Kong’s vibrant civil society—blocked attempts to pass such a law since at least 2003.

In other words, what Beijing and its puppet government in Hong Kong are trying to do now is to crush the democracy movement through extralegal “legal” means. By using the law rather than, say, the military, the regime is attempting to imbue its maneuver with a semblance of legitimacy. But this is futile: any law that is imposed without the participation and assent of the local population, at least through the intermediate of directly and fairly elected representatives, has no legitimacy.

Hong Kong’s population is worried, and with reason. The NSL, more than any initiative to date, grants the regime a carte blanche to impose its authority on Hongkongers under the guise of protecting national security. By bringing issues of national security into Hong Kong’s constitutional arena, the regime is using the NSL as a Trojan Horse to bring the Basic Law closer in line with the Chinese constitution—especially in its securitization of authoritarianism.

Proponents of the NSL have disingenuously pointed out that such laws are common worldwide, including in democracies. What they conveniently omit to mention is that legal practices and faceguards are much stronger in democracies than they are in China or Hong Kong.

For one, by enshrining the sanctity of Chinese Communist Party rule in its constitution, China’s One-Party system basically equates democratization with subversion. In contrast, democratic systems may outlaw sedition or subversion, but they do give their population the right to replace their government every few years through free and fair elections. Indeed, it is precisely in order to guarantee this right to free and fair elections that democracies get tough on forces that may seek to overthrow democratic governments by violent means and replace them with brutal, authoritarian and illiberal ones like China’s.

The same goes for secession. The best democratic practices consist in authorizing citizens to organize and mobilize peacefully and to democratically create their own state if they so wish—only clamping down on violent organizations that may seek to forcibly impose independence on the local population. Of course, China has set the bar low and looked at the worst examples—like Spain—to justify its crackdown on internal nations seeking to exercise their right to self-determination. Just like it is now reveling at the questionable handling of large-scale protests by US authorities.

The point is, an important benchmark in assessing the criminality of suspected acts of sedition, subversion and secession in democracies is the use of violence. Proponents of the NSL have used this argument to reassure us that freedom of expression will still be guaranteed in Hong Kong under the new law. The law, we are told, will only target the “small minority” that seeks to overthrow the central government through violent means.

Or will it?

So far, there has been no case of organized anti-state violence in post-Handover Hong Kong. Yet, confrontations with Hong Kong’s Police Force—which are largely attributable to the government’s refusal to confer legitimate political rights to its citizens (and, relatedly, to its dispatching of an increasingly brutal police force to suppress protesters)—are now increasingly being portrayed as acts of terrorism, which means they could fall under the purview of the NSL.

And in a regime that equates pebble-throwing kids with terrorists, it isn’t difficult to imagine how, down the road, mere discussions of democracy or self-determination will be framed as incitement to subversion or secession. Actually, this line of argument already appears to have been used as a pretext to ban talks of Hong Kong independence on campuses.

Even if such accusations prove insufficient for actual criminal conviction under the NSL, their effects on speech and academic freedoms could become very significant.

Indeed, what is most frightening to most of us is perhaps not the prospect of actual prosecution on the basis of offenses to the NSL so much as the extrapolation of the regime-securitizing state narrative to other aspects of Hong Kong’s social and political life—with very tangible consequences.

In a city in which election candidates have been barred for expressing mere ideas that allegedly contravened the Basic Law (like self-determination), it won’t be long before candidates who (have) oppose(d) the authoritarian regime are deemed ineligible to stand for election. Indeed, this somewhat ironic idea of banning democrats from taking part in elections on the basis that they do not respect the constitutional order in place has been floating around for some time in loyalist circles. Once enshrined into the Basic Law, the NSL could easily give the government a constitutional basis to act on these threats. Quite conveniently, no judicial proceeding is needed to disqualify an election candidate; only a decision by the Returning Officer. And with the idea of China’s One-Party rule being obliquely enshrined in Hong Kong Basic Law as a matter of national security, the scope for such slippage is almost limitless.  

By securitizing authoritarianism and weaponizing Hong Kong’s constitution, the NSL is yet one more instrument of oppression meant to further disempower Hongkongers and expand the reach of Beijing’s rule of fear over the city. Indeed, it may well turn out to be the ultimate subjugation device the regime has been longing for.

Jean-François Dupré is a Hong Kong permanent resident affiliated with Academia Sinica’s Institute of Sociology, Taiwan.

This article was originally posted by Hong Kong Free Press (HKFP)

Photo by Han Min T on Unsplash

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